On 28 August 2019 a delegation of three ministers met with the Queen at Balmoral in the Scottish Highlands. This formed a quorate meeting of the Privy Council, a hangover from the days of personal rule by monarchs that still exists today to perform primarily ceremonial functions. There was nothing ceremonial, however, about this meeting. The result was an order providing for Parliament to be prorogued from the second week in September until 14 October. The effect of this is to suspend Parliament during the course of any Brexit negotiations conducted by the Johnson government and limit the time available for Parliament to debate Brexit to around 18 days. Given, however, that Johnson proposes to hold a Queen’s speech on 14 October (which is traditionally debated for 4-6 days) and the House of Commons rarely sits on Fridays (when MPs are supposed to be in their constituencies) the reality is that there is likely to be fewer than ten days available for Parliament to debate Brexit.

While the official position of the Johnson government is that prorogation is necessary to usher in the government’s new legislative agenda, the Defence Secretary, Ben Wallace, was caught on camera appearing to say that the real reason was because the government does not believe it can command a majority in the House of Commons. As Joanna Cherry QC put it in her affidavit before the Court of Session, it cannot have escaped the Prime Minister’s notice that the effect of proroguing Parliament is to make it significantly more difficult for the coalition of opposition MPs, formed the day before the prorogation was announced, to pass legislation that would rule out a “no-deal” Brexit.

From a constitutional perspective, three issues arise from the prorogation:

The Constitutional Issue

The UK constitution is based on the principle of parliamentary sovereignty. Legitimacy flows from the voters, to MPs, and through MPs to the government of the day. The government holds office only by virtue of its ability to command a majority in the House of Commons, it is bound by the laws enacted by Parliament, and (for the most part) cannot exercise power unless that power has first been conferred on it by Parliament. Most importantly, the government is accountable to Parliament.

Prorogation is not, in itself, unusual. It is a mechanism used to end one session of Parliament in preparation for the beginning of the next. The issue in this case is not the tool itself but how the tool is used. The effect of this prorogation (and potentially the intention behind it) is to exclude Parliament from holding the government to account or legislating on one of the most important public policy issues in decades. In seeking, effectively, to govern without Parliament, the government seeks to govern without the legitimacy that parliamentary accountability confers. If the government can prorogue Parliament whenever it looks like it might lose the consent of Parliament to govern, then the chain of legitimacy that ties the UK constitution together is broken.

The Legal Issue

The role of the courts in public law is to ensure that the government does not step outside the powers conferred on it by Parliament and that it exercises those powers properly. Some powers, however, are “reserved” to the monarch – these are powers that were not originally granted by Parliament. They pre-date the UK’s modern democracy and hark back to a time when the monarch governed in his or her own name and Parliament was, effectively, limited to approving requests for money.

Prorogation is just such a reserve power. This has led some to take the view (as the government’s advocate Roddy Dunlop QC told the Court of Session today), just as reserve powers are beyond Parliament, they are similarly beyond the reach of the courts. There are currently three simultaneous cases challenging this interpretation. In England Gina Miller is seeking an urgent injunction in the High Court. In Northern Ireland campaigner Raymond McCord is seeking a similar outcome. In Scotland, a coalition of over 70 MPs, led by Joanna Cherry QC are seeking an interim suspension of the Queen’s order to prorogue Parliament, with a final hearing next week. The Scottish case is furthest along and was heard today by Lord Doherty in the Court of Session. The case put forward by Aidan O’Neill QC on behalf of the parliamentarians is that, where the Prime Minister’s advice to the Queen to prorogue is unconstitutional, any order based on that advice is also unconstitutional. The Queen herself may be beyond the reach of the court, but the Prime Minister is not. Given that the Prime Minister was the animus behind prorogation, the courts should not permit him to hide behind the person of the Queen to act unconstitutionally.

The Broader Issue

Beyond the legal technicalities, this prorogation highlights a broader issue. It fits into a pattern of the UK acting less like a mature democracy. In the last 12 months the Attorney General has refused to publish documents, despite being ordered to do so by Parliament, because he believed that it was not in the national interest. This position ignored the fact that parliament itself is supposed to be the final arbiter of the national interest. There has been c0ontinuous background noise, from both government and press, that those who disagree with the government’s policy on Brexit are somehow betraying the people and an elevation of the 2016 referendum result to a sort of sacrosanct status, superior even to votes that happened more recently. When prorogation is placed within this pattern, one might forgive future historians for charting a pattern of decline.

The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog

Sam Fowles is a Barrister at Cornerstone Barristers and a Fellow at the Foreign Policy Centre. He is part of the team representing Joanna Cherry QC MP.